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HAPNEY v. RHEEM MANUFACTURING COMPANY9/14/2000
Appellee Rheem Manufacturing Company petitions for rehearing of this court's June 8, 2000, decision wherein it held that the gradual onset for back injuries specified in Ark. Code Ann. § 11-9-102(4)(A)(ii)(b) applies to injuries to the neck or cervical spine.
In reaching its decision, the majority court relied in relevant part on the case of Newberg v. Thomas Industries, 852 S.W.2d 339 (Ky. App. 1993). There, the Kentucky Court of Appeals, citing to the American Medical Association's Guides to the Evaluation of Permanent Impairment (1st ed. 1977), held that the cervical vertebrae are part of the worker's back. In so holding, the Kentucky court based its decision on the 1977 Guides which provided, "The back is a unit of the whole man, may be divided into three sections: the cervical, dorsal, and lumbar regions."
Rheem notes that the Newberg case was first mentioned by appellant Renate Hapney during oral argument, and it was unable to respond as it should. Even Hapney's counsel was unable to answer the questions posed to him as to whether the 1977 Guides' definition of "back" relied on by the Newberg court had changed in subsequent editions of the Guides. Rheem now accurately submits
that the American Medical Association's Guides to the Evaluation of Permanent Impairment, 2d 3rd, and 4th editions, do not contain the definition of "back" utilized by the court in Newberg. In fact, the Guides, 4th edition, at page 13, in discussing the musculoskeletal system, describes that system as being comprised of the upper extremity, the lower extremity, the spine, and the pelvis, each to be considered a unit of the whole person. While the term "spine" is used, "neck" or "back" is not. Moreover, a discussion of the spine in the fourth edition, at page 94, states that symptoms related to the back and spine are among the most common of adults' everyday complaints, thus demonstrating that the two are not the same thing. The Guides, 4th edition, at pages 116-17, further recognizes the "neck" as a distinct unit in connection with measuring range of motion.
The major point to be made of the above is that the Newberg decision simply is not controlling here since its employment of the definition of "back" used in the 1977 Guides is no longer recognized. Instead, the more current Guides appear to omit that definition of "back" used in the 1977 edition and correctly employ the term "spine" when dealing with the determination of impairments. It is also worth noting at this point that the Guides' purpose is just that — aiding physicians in the determination of impairments, not in determining whether an injury is compensable.
In considering the above, we emphasize the obvious which was noted in the dissenting opinion rendered on June 8. Section 11-9-102(4)(A)(ii)(b) provides that a worker sustains a compensable gradual onset injury if the injury is a back injury; the statute makes no mention of "spine" or "neck." Also, as mentioned in that opinion, recognized medical definitions have very clearly defined the term "back" as being below the neck or from the neck to the pelvis. For these reasons, we grant Rheem's
request for rehearing, and hold the commission was correct rejecting Hapney's argument that she sustained a compensable back injury under § 11-9-102(4)(A)(ii)(b).
Having rejected Hapney's foregoing first point on appeal, we must now consider her two other points for reversal, which our
court did not address in its original opinion. In her second point, Hapney submits that her neck injury is compensable because the injury was caused by a specific incident and was identifiable by time and place of occurrence pursuant to Ark. Code An
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